By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
Section 187(2)(b) of the LRA provides that a dismissal may be fair if the employee has reached the normal or agreed retirement age. This means that termination based on the employee’s age might not constitute unfair discrimination if it can be shown that the employee has reached retirement age.
Unfair discrimination can take many forms. For example, where an employee is unnecessarily sidelined because he/she is disabled this could be unfair discrimination. If an employee is sexually harassed this is a form of unfair discrimination based on sex. If a worker is paid less than his/her colleagues because he is male or she is female this would constitute prohibited gender discrimination. If a job applicant is unsuccessful because he/she is white this could be found to be unfair on the grounds of race.
For example, in the case of Consolidated Billing vs IMATU (1998, 8 BALR 1049) the employees were turned down for internal appointments because they did not fit the desired racial profile. Because they internal applicants had already been short-listed and were thus acknowledged to have been suitably qualified the IMSSA arbitrator found the failure to appoint the employees to be unfair racial discrimination.
However. Not all discrimination is unfair. For example, if the employer refuses to appoint a person aged 14 years this is discrimination based on age. However, it is not unfair discrimination because the law says that employers may not hire employees younger than 15 years old. But, other than this, discriminating against an employee or job applicant simply because he/she is ‘too young’ or ‘too old’ will normally constitute unfair discrimination.
But what is the situation when employers have allowed employees to stay on after the normal retirement age? Must the employer then allow the employees to stay on until they pass away? Section 187(2)(b) of the LRA that I outlined at the beginning of this article appears to answer this question by indicating that an employee who is 66 or 78, and whose normal retirement age was 65, may be fairly dismissed because he/she ‘has reached the normal retirement age’. However, not even the Constitutional Court was able to agree on the meaning and application of this section.
In the case of Solidarity vs SITA (Lex Info 20 December 2024. Constitutional Court case number CCT 346/22) the judges were not all able to agree on the meaning and application of this section. In this case the six employees all passed their normal retirement age of 60 But were allowed to stay on. They agreed that their new retirement age would be 67. However, SITA retired them before they reached age 67. It appears that the employer relied on the argument that an agreement should not take precedent over the provisions of a statute and that section 187 effectively allowed them to retire the employees at any time after age 60.
The majority of judges found that the dismissals had been automatically unfair and ordered the employer to pay each of the employees 24 months’ compensation. Even if the average remuneration of the employees was only R20 000 per month this award would have amounted to R2 880 000.
This outcome shows that the courts will not tolerate mistreatment of employees on the grounds of age, and that decision makers all need to be trained in the requirements of workplace law.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
